Weekly Notes: legal news from ICLR – 23 October 2015

This week’s lineup of legal news and views considers diversity in legal careers and promotion, public trust in judges, what happens when they disagree with their betters, and some class and not so classy actions.

Diversity at Law

Are legal careers mobility-optimised?

The appointment this week of two women as High Court judges, one of them Asian, stirred up a flurry of congratulatory tweetings, including the following by Law in Action-man Joshua Rozenberg.

Congratulations to Bobbie Cheema-Grubb QC, first Asian woman high court judge. And to Her Honour Judge May QC, promoted to high court.

There was good news, too, from Northern Ireland, where women – two of them – were appointed to the High Court bench for the first time in that jurisdiction.

These promotions have engendered a wave of optimism – contradicting the gloom that greeted Lord Sumption’s pessimistic prediction that it might take another half century to reach the halfway mark in terms of judicial diversity (see Weekly Notes – 25 Sept). Speaking on the same topic, Baroness Hale of Richmond pointed to the subjective nature of assessments of merit, and argued that merit and diversity, far from being competing requirements, were actually complementary.

One could go further: there is merit in diversity, and to the extent that judges are almost certainly affected by unconscious biases of one sort or another (think of the way judges from different backgrounds might assess the parenting skills of parties in the Family Court) so judges of different social, racial and cultural backgrounds will bring a mix of such filters to the collective activity of judging, especially at a senior level where decisions affect not just the parties but, by setting precedents, the development of the common law.

In short, the development of judge-made law will benefit from a more varied palette of the judges making it.

The merits of diversity in the legal profession more generally are very fully discussed in a report, Opening Up or Shutting Out: social mobility in the legal profession, written by Jon Robins (of The Justice Gap) and published by Byfield Consultancy this month. The report looks at both City and high street firms and the judiciary. Introducing the report, Funke Abimbola, Managing Counsel (UK & Ireland) of Roche UK, explained that they set out to investigate to what extent the law had become a more inclusive profession since Alan Milburn, as chair of the Social Mobility and Child Poverty Commission, published his report Fair Access to Professional Careers in May 2012.

The perception then had been that law was “on the right track” but “progress is too slow”. The statistics do not paint a happy picture, not least because there is a “marked reticence of many firms to provide transparency when it comes to their own diversity”. Too many respondents to a survey of 26 UK Top 50 firms said they would “prefer not to say”.

Looking at City firms, Robins comments: “the harsh and inescapable reality for lawyers from ordinary backgrounds is that the odds are piled against them.” But there is pressure from a perhaps unexpected quarter. Not the government, or social benefit foundations or even their own employees, but from the one kind of person law firms might really want to please: their clients. Increasingly, the report notes, “social mobility and diversity is raised as an issue by law firm clients.” Clients are increasingly diverse themselves, notes Abimbola: “This is the thing that law firms need to appreciate. Clients who are committed to diversity are also looking for diversity in their legal panel.”

It is ironic, for example, that a big engineering firm like National Grid “has achieved greater diversity than the law firms it routinely instructs” says its General Counsel, Alison Kay. “Those firms that have just paid lip service to diversity are beginning to realise that they will lose business if they do not start to up their game.”

So it seems whichever way you look at it, both the business of law and the quality of law-making cannot fail to get better if you increase the level of diversity in the legal professions.

See also: The key to diversity? Men, by Monidipa Fouzder in the Law Society Gazette, who says it’s not just that they are the ones whose attitudes need the change. It’s more fundamental than that:

To have a meaningful debate about diversity, representatives from all sides of the table should be present. Whether one likes it or not, most of the key decision-makers will be men. So they need to be part of the discussion because very little will be achieved without their help.

Public trust in judiciary

Survey shows increasing faith in judges

According to a YouGov poll reported in The Independent and commented on by Professor Richard Moorhead on his Lawyer Watch blog, public trust in the judiciary has risen substantially from 61% in 2008 to 70% in 2015. That suggests that, regardless of their diversity or lack thereof (see above) they must be doing something right. However, that is not the whole story.

Source: Independent

Looking at the position over a 12-year period since 2003, those professions whose confidence rating fell included Lib Dem politicians (down 16%), senior police officers (down 18%) and journalists (upmarket ones fell by more than mid-market ones, 29% compared to 20%, but after the hacking scandal it is not surprising that red-top tabloid journalists still managed a fall, from an already low 14% to just 8%, the least trusted professional of all now). Meanwhile estate agents fell by only 2%, from 16% to 14%.

Over the same period, trust in judges increased by 2%, which is not saying much. But there is a more interesting variation. Starting at a level of a around 68% in 2003, trust in judges rose to a peak of around 77% in 2006, after which it plummeted in 2007 and 2008. That seems to be where the real story is. Why did faith in judges to speak the truth fall at that time?

My guess is that it has something to do with those mid-market tabloids and their endless pieces about “unelected judges” (no doubt illustrated with inappropriate gavels) anxiously protecting the human rights of all the least desirable elements in society, such as foreign terrorists with cats.

The ICLR has had its own somewhat tangential brush with what in Scotland is called “murmuring judges” (ie speaking slanderously or disrespectfully of them). After Lord Neuberger, President of the Supreme Court, gave a speech at an event to mark ICLR’s 150th anniversary, in the course of which he discussed the “Top 15 cases” published in The Law Reports since 1865, one of which was A v Secretary of State for the Home Office [2005] 2 AC 68 (aka The Belmarsh case), the Daily Mail published an article with the following screaming headline:

Top judge praises Human Rights Act for keeping terrorists out on the streets! President of the Supreme Court says laws gave courts the power to defy Parliament

The article’s content is only slightly less inflammatory, and basically suggests (inaccurately) that the then Law Lords used the Human Rights Act to keep dangerous foreign terrorists (who had not been tried or found guilty of any offence in court) out of detention just months before the 7/7 bombings in London, without acknowledging that those who carried out the 7/7 bombings were home-grown terrorists of the sort not actually covered by the legislation at issue. (It was this discrimination between foreign and domestic terror suspects, along with other flaws, that justified the Lords ruling against the legislation.)

As for defying Parliament, Lord Neuberger in his speech had carefully explained this – had the Daily Mail bothered to read it: it was Parliament itself, in the Human Rights Act, which created the power to rule against legislation which was incompatible with the Act. In other words, it was Parliament all along which got it wrong by making new legislation that didn’t comply with its own rules in its own Act.

The Daily Mail is not alone in this trolling of the judiciary. The Daily Telegraph, like a tipsy old uncle stumbling after his neer-do-well nephew, also pronounces from time to time on the excesses of the judges. Sometimes it is “secret courts” of the Family Division (a favourite target of the contrarian columnist Christopher Booker) but today it was Charles Moore, the authorised biographer of Margaret Thatcher, declaring that Our Top Judges Have Become Too Powerful.

To see whether a constant diet of this sort of thing may have contributed to a fall in public trust in the judiciary in 2007 and 2008 would, I think, require a bit more research than I have time to do today. But I have another theory, and this may explain why, since then, the judiciary have gone up in people’s estimation, and become more trustworthy. They have become, with the creation of the Supreme Court, much more ready to speak out. Not only are they giving a lot more speeches (it seems to me – I am prepared to be proved wrong) but also they are more ready to enter into the arena and point out the errors of their critics, than they used to be. For more on this, see my piece on this blog: Trappists v Spinners: shaping the legal discourse.

Judges at odds

Conflict of precedence

Meanwhile, what happens when the judiciary appears to be at odds with itself? More specifically, when a leading High Court judge appears to be engaged in a feud with the more senior judiciary of the Court of Appeal. This was what emerged from the judgment of the court given by the Master of the Rolls, Lord Dyson, this week in KW v Rochdale Metropolitan Borough Council[2015] EWCA Civ 1054.

Commenting on the case on his Suesspicious Minds blog, Andrew Pack titled the post “Ever decreasing circles – Court of Appeal take Mostyn J to task for taking them to task for taking him to task…” and explained that it was all to do with the “deprivation of liberty” test as laid down by the Supreme Court in an earlier case P v Cheshire West and Chester Council[2014] UKSC 19, [2014] 1 AC 896 (“Cheshire West”) which Mostyn J did not agree with and purported to distinguish on the facts of the present case. The case went to the Court of Appeal but it did not actually give a judgment overruling him, since the parties all consented to an order, on the basis of which the appeal was allowed and the case remitted to Mostyn J to authorise a care plan. He, however, declined to rethink his original judgment, there being no judgment of the Court of Appeal reversing it, only a consent order. And so the parties trudged back to the Court of Appeal a second time, this time to get an actual judgment, which in no uncertain terms tell the judge he was wrong and they were right, so there.

So, says Pack,

“Mostyn J disagreed with the Supreme Court, then when the Court of Appeal disagreed with him, he disagreed with them. And now the Court of Appeal disagree with him again.”

And, as he observes,

“In the midst of all of this, are some real people with real problems to resolve, and a lot of taxpayers money being spent.”

judges must apply the law as it is, irrespective of their personal views upon its merits. Thus they must follow precedent, the system under which courts are generally required to follow previous decisions by courts of a higher or equal level, even if the judges do not agree with a previous decision that is binding upon them.”

Whilst expressing some sympathy for Mostyn J’s view of the matter (which I share), Bolch accepts that the doctrine of precedent obliges him to apply the law as it exists, not as he thinks it should be. And he quotes from the second judgment of the Court of Appeal, which said, before removing Mostyn J from the case:

“In our view, the judge’s passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases.”

Where I think Mostyn J deserves sympathy is in his view that a decision of a court of record (him, in the High Court) cannot be upset by a consent order made by the Court of Appeal. The latest Court of Appeal judgment would appear in no uncertain terms to reverse Mostyn J’s second judgment: but does it reverse his first? I’m not so sure. Just saying “we disagree, we disagree, we disagree” is not the same as hearing full argument, perhaps with an amicus since all the parties seemed to have been of the same opinion, and then pronouncing on the issues in a proper judgment. Anything less seems disrespectful, not necessarily to Mostyn J who after all was not exactly kow-towing to the Supreme Court, but to the doctrine of precedent, whose maintenance, as Bolch recognises, is of rather greater importance than the particular details or outcome of this case.

In short

Legal Aid firms to claim over tender

Apparently up to 100 solicitors’ firms are likely to claim judicial review against the Ministry of Justice over the Legal Aid Agency’s allegedly botched handling of the bidding process for the award of criminal legal aid contracts. The awards were announced last week, but shortly before that a whistleblower let slip that the process was operated by temporary staff that had little knowledge of the criminal law legal profession or public procurement procedures.

VW Emissions latest

Claimant solicitors Leigh Day seem to be positioning themselves as the go-to lawyers for people claiming against VolksWagen over the diesel emissions data fiddle; while Freshfields Bruckhaus Deringer seem to have bagged the brief to defend the German car maker in its non-US legislation. As we reported previously (Weekly Notes _ date – ) there are firms falling over each other to grab the no doubt lucrative class-action plaintiff business all over the United States, where the defence brief has been assigned to Kirkland & Ellis, a firm based in Chicago, according to The Times Law Brief newsletter this week.

Facebook’s forensic fallout

In yet more fallout from the Schrems case reported last week (see Weekly Notes – 16 Oct ), Facebook has applied to join judicial review proceedings at the High Court in Dublin over the way Ireland’s data protection commissioner (DPC) handled concerns about Facebook’s data transfer arrangements, according to solicitors Pinsent Masons’ newsletter, Out-Law.

We will request an opportunity to join the proceedings in the Irish High Court where the Irish DPC’s investigation is to be discussed,” [a] Facebook spokesperson told the Irish Independent. “We believe it is critical that we join the proceedings so that we can provide accurate information about our procedures and processes, as well as to correct inaccuracies that already exist.”

Meanwhile EU regulators have set a three month deadline for new ‘safe harbour’ agreement. The Article 29 Working Party, which is made up of the 28 EU data protection authorities, said that EU regulators “consider that it is absolutely necessary to have a robust, collective and common position on the implementation on the judgment”.

Teenage trolls in the dock

Two teenage internet trolls who abused and mocked judges and legal procedure on Facebook are facing jail in a crackdown by law officers on people using social media to disrupt court cases, according to The Times Law Brief newsletter. The youths took illegal photos of judges sitting at Bristol crown court and posted them online, along with messages mocking the law and “glorifying a murderer”. The High Court granted the Attorney General permission to pursue the two trolls for contempt of court.

Sanchia Berg, winner of the broadcast category of the 2015 awards, for her BBC Radio Four Today programme concerned deprivation of liberty cases in the Court of Protection. You can listen to the winning entry via AudioBoom.

Jon Robins, editor of www.thejusticegap.com, winner of the print category for his two articles in the Independent on Sunday, “A failure of justice” (18.1.2015) and “Money cannot make up for what happened” (10.5.2015), both of which highlighted the lack of compensation and support for victims of miscarriages of justice.

Some other recent good reads

Baroness O’Neill of Bengarve, giving the annual lecture of the thinktank Theos, Freedom of Expression and Freedomof Religion (saying amongst other things that there is “no right not to be offended” over religious matters).

Law (and injustice) from around the world

Australia

Chinese artist banned from using Lego

The Chinese dissident artist, Ai Weiwei, whose brilliant exhibition is currently on at the Royal Academy in London (see Weekly Notes – 18 Sept) has, according to The Guardian, been banned from using Lego toy building bricks to create an artwork about free speech to be shown at the National Gallery of Victoria in Australia for an Andy Warhol/Ai Weiwei exhibition in December.

Andy Warhol | Ai Weiwei, developed by the NGV and The Andy Warhol Museum, with the participation of Ai Weiwei, will explore the significant influence of these two exemplary artists on modern art and contemporary life, focussing on the parallels and intersections between the two artists’ practices.

Apparently the Danish toymaker does not want the iconic bricks to be used for “political works” and has refused to supply a bulk order. Commentators have suggested this may have something to do with the fact that the company has recently opened a branch of Legoland in Shanghai, in a joint venture with Merlin Entertainments. Legoland is the theme park where (in this correspondent’s experience) the ratio of queuing time to ride duration is the most egregiously high. (But the models are cute. Natch.) Ai Weiwei does not have a “harmonious” relationship with the Chinese government. In fact, they keep trying to lock him up and block his art. No doubt Lego would like to have a harmonious relationship with the Chinese government. But if they won’t help the artist, others will. Since Lego’s refusal to supply the bricks for his art, Ai Weiwei has been inundated with offers of bricks from other sources, as well as satirical references to Lego’s bulk order ban.

Should the matter ever get to court, might the judges look like this?

Lego Nego – the toymaker would not agree to female judge figures either

Bahrain

Human Rights defender jailed

On 21 October the the Bahrain Court of Appeals reduced from three years to one year the sentence of imprisonment imposed on human rights defender Zainab Al-Khawaja for simply tearing up a picture of the monarch, considered a crime in Bahrain. Other cases have been adjourned, including a one-year sentence for insulting a public official, nine months for entering a restricted area and six months in prison for insulting a public official, while seeking to visit her father Abdulhadi Al-Khawaja in prison in August 2014.

“The authorities in Bahrain know that by reducing the sentence it will help minimise the international reaction. In effect though, it doesn’t change much. Zainab is still at risk of going to prison with her baby at any time now. Ripping a picture is not a crime, and all sentences must be immediately and unconditionally revoked,” said Maryam Al-Khawaja, Gulf Centre for Human Rights (GCHR) Co-Director.

France

Lille the pink

Lawyers in the French city of Lille have blockaded the courthouse in a protest, which the police attempted to dislodge. Violent scenes ensued. Footage circulating on social media showed lawyers chanting, ringing bells and blowing trumpets from inside the courthouse, while police look on helplessly. Reported in La Voix du Nord, along with video, with thanks to Legal Cheek for bringing it to our attention.

India

is urged not to welcome Sudanese president

The International Criminal Court (ICC) has urged India not to welcome President Omar al-Bashir of Sudan, to attend the India-Africa Forum Summit from October 26 to October 29, 2015, in New Delhi along with other African leaders.

Al-Bashir faces two ICC arrest warrants, issued in 2009 and 2010 over attacks that deliberately and systematically targeted civilians in violation of international law as part of the Sudan government’s counterinsurgency policy in Darfur. The attacks have led to the displacement of hundreds of thousands of people to refugee camps in Chad and to camps for internally displaced people in Darfur.

“Many countries have avoided a visit from al-Bashir, and India should do the same,” said Elise Keppler, associate international justice director at Human Rights Watch. “India has said that it wants to play a leadership role on global issues, and this is an opportunity to be on the right side of history.”

Iran

Poets sentenced: appeal launched

On 12 October the Iranian poets Fatemeh Ekhtesari and Mehdi Moosavi were sentenced to 11.5 and nine years in prison respectively for crimes including ‘insulting the holy sanctities.’ They were also sentenced to 99 lashes each for ‘illicit relations.’ They had been arrested in December 2013 on their way to a Turkish literary workshop.

PEN is calling on the Iranian authorities to quash their sentences. If you would like to add your voice to the many already expressing outrage and urging the Iranian authorities to think again and respect freedom of expression and belief, then please send appeals to the Leader of the Islamic Republic, the Head of the Judiciary and the President of the Islamic Republic of Iran, via this link.

And finally…

Probably the best cartoon to emerge from the recent state visit of the Chinese premier, Xi Jin-Ping, to the UK at the start of what was described a “golden era”.

Image: Steven Camley, Herald of Scotland

That’s it for now. Enjoy the week ahead.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent the opinions of ICLR as an organisation.